Opinion
No. 12-0972
03-12-2013
In re: H.C., A.W., and B.C.
(Mingo County 11-JA-73, 74, and 75)
MEMORANDUM DECISION
Petitioner Mother's appeal, by counsel Marsha Webb-Rumora, arises from the Circuit Court of Mingo County, wherein her parental rights were terminated by order entered on July 26, 2012. The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee A. Niezgoda, has filed its response. The guardian ad litem, Diana Carter Wiedel, has filed a response on behalf of the children.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
On August 12, 2011, the DHHR received a referral that H.C., A.W., and B.C. were living with a relative who could not care for them due to illness. Two days prior, the children's parents were involved in a domestic altercation. Petitioner Mother left the house and the father took the children to the relative's house at 2:00 a.m. on August 10, 2011. The father's parental rights have been terminated and he was never given an improvement period. On October 31, 2011, the circuit court found that Petitioner Mother had meaningfully participated in services and granted a six-month dispositional improvement period. On January 24, 2012, the circuit court held a hearing to assess the progress of the dispositional improvement period. The guardian stated that petitioner was only minimally compliant with services, failed to submit to all of the drug tests, and missed several visits with the children. The DHHR recommended Petitioner Mother be permitted to complete her dispositional improvement period because she had transportation issues she was dealing with at that time. Petitioner Mother failed drug tests on February 22, February 29, and March 7, 2012. On July 26, 2012, the circuit court entered its "Final Supplemental Dispositional Order and Advisement of Appeal Rights," wherein it terminated Petitioner Mother's parental rights. The court found that Petitioner Mother had missed six supervised visits with her children, and that she had refused assistance from the DHHR to help with her transportation issues.
The Court has previously established the following standard of review:
"Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon theSyl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety." Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)
On appeal, Petitioner Mother argues that she was not adequately told how she would be able to keep her children. The DHHR responds that the case plan contained specific goals and descriptions of specific services and that other resources throughout the case helped guide petitioner. The DHHR further states that Petitioner Mother did not follow through with services and suggestions that would assist her with compliance. The DHHR also noted her positive drug tests. The guardian concurs with the DHHR that Petitioner Mother has not complied with her improvement period and should not receive another improvement period.
This Court has held that "'courts are not required to exhaust every speculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened . . . .' Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)." Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). This Court finds that the circuit court was presented with sufficient evidence upon which it could have found that that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and that termination was necessary for the children's welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these findings.
This Court reminds the circuit court of its duty to establish permanency for the children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent placement of the child.Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the children within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of Procedures for Child Abuse and Neglect Proceedings for permanent placement ofSyl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated that:
an abused and neglected child following the final dispositional order must be strictly followed except in the most extraordinary circumstances which are fully substantiated in the record.
[i]n determining the appropriate permanent out-of-home placement of a child under W.Va.Code § 49-6-5(a)(6) [1996], the circuit court shall give priority to securing a suitable adoptive home for the child and shall consider other placement alternatives, including permanent foster care, only where the court finds that adoption would not provide custody, care, commitment, nurturing and discipline consistent with the child's best interests or where a suitable adoptive home can not be found.Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, "[t]he guardian ad litem's role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home." Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and the termination of petitioner's parental rights is hereby affirmed.
Affirmed.
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II